As filed with the Securities and Exchange Commission on January 17, 1996
Registration No. 33-_________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
FASTCOMM COMMUNICATIONS CORPORATION
(Exact name of registrant as specified in its charter)
Virginia 45472 Holiday Drive 54-1289115
(State or other jurisdiction of Sterling, Virginia 20166 (I.R.S. Employer
incorporation or organization) Telephone: (703) 318-7750 Identification Number)
(Address of principal place of business, and address and telephone number
of principal executive offices)
<TABLE>
<S> <C> <C>
Mark H. Rafferty FastComm Communications Corporation Copy to:
Chief Financial Officer 1992 Non Qualified Stock Option Plan Thomas G. Amon, Esq.
FastComm Communications Corporation Amon & Sabatini
45472 Holiday Drive FastComm Communications Corporation 437 Madison Avenue
Sterling, Virginia 20166 1992 Incentive Stock Option Plan New York, New York 10022
Telephone: (703) 318-7750 Telephone: (212) 759-9030
(Name, address and telephone number FastComm Communications Corporation (Counsel for Registrant)
of agent for service) Executive Non-Qualified Option Plan
</TABLE>
<TABLE>
<CAPTION>
(CALCULATION OF REGISTRATION FEE)
====================================================================================================================================
Proposed maximum Proposed maximum
Title of each class of Amount to be offering price aggregate offering Amount of
securities to be registered registered per unit(2) price(1) registration fee
====================================================================================================================================
<S> <C> <C> <C> <C>
Common Shares, par value $.01 per
share .................................. 1,047,251 (1) $4.875 (2) $4,848,289 $1,672.00
====================================================================================================================================
</TABLE>
(1) Reserved for issuance on exercise of stock options plus, pursuant to Rule
416, such indeterminate number of additional Common Shares as may be
required for issuance on exercise as a result of the antidilution
provisions of such options.
(2) Pursuant to Rule 457(c) and Rule 457(h), the aggregate offering price and
the filing fee were computed on the bases of (a) the prices at which
existing outstanding options may be exercised (988,333 options for an
aggregate exercise price of $4,561,064) and (b) the last sale price for the
Common Shares as of January 15, 1996 (such date being within five business
days prior to the date of filing of this registration statement), with
respect to the authorized but unissued balance of options (58,918 options
at an assumed exercise price of $4.875 per share for an aggregate exercise
price of $287,225).
================================================================================
<PAGE>
THIS DOCUMENT CONSTITUTES PART OF A PROSPECTUS
COVERING SECURITIES THAT HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933
FastComm Communications Corporation
------------
1,047,251 Common Shares
for the
FastComm Communications Corporation
1992 STOCK OPTION PLAN
------------
This Prospectus relates to the 1992 Stock Option Plan, as amended (the
"Plan") of FastComm Communications Corporation (the "Company") and to the common
shares, par value $.01 per share, of the Company (the "Common Shares") issuable
upon exercise of options which have been or may be granted to key employees,
including officers (herein sometimes "Employees"), and independent contractors,
including directors who are not also employees or officers (herein sometimes
"Consultants") of the Company pursuant to the Plan. The Company has previously
registered 1,600,000 Common Shares under the Securities Act of 1933, as amended
(the "Securities Act"), for distribution to optionees upon the exercise of the
options granted or which may be granted under the Plan.
Common Shares distributed, if any, upon the exercise of options granted to
optionees who are also affiliates of the Company may only be reofferred or
resold pursuant to a separate prospectus prepared for that purpose, or pursuant
to an exemption from the registration requirements of the Securities Act. An
affiliate of the Company is defined as a person who directly or indirectly
controls, is controlled by, or is under common control with, the Company and
includes, among others, officers, directors and persons holding greater than ten
percent of the issued and outstanding Common Shares.
The Common Shares are traded on the NASDAQ National Market System under the
symbol "FSCX."
------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION, NOR HAS THE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------
The date of this Prospectus is January 17, 1996.
<PAGE>
THE PLAN
General
The Plan was adopted by the Board of Directors and approved by the
shareholders of the Company effective December 3, 1992, and has since been
amended by the Board of Directors of the Company on August 31, 1993 and 1994 and
on April 28, 1995. The first and third amendments involved an increase in the
number of shares subject to the Plan and the second involved a reduction in the
option exercise price of certain outstanding options as of that date. The
summary of the plan contained in this Prospectus does not purport to be
complete. Reference is made to the Plan itself for a complete statement of its
terms and provisions.
The principal executive offices of the Company are located at 45472 Holiday
Drive, Sterling, Virginia 20166, and its telephone number is (703) 318-7750.
Participants in the Plan may obtain additional information regarding the Plan
and its administration from the Chief Financial Officer of the Company at its
executive offices, where a copy of the Plan is maintained for inspection.
The Plan is not subject to the provisions of the Employee Retirement Income
Security Act of 1974, as amended, and is not qualified under Section 401(a) of
the Internal Revenue Code of 1986, as amended (the "Code").
The Plan is intended to provide an incentive to certain key employees,
including officers, directors who are not also employees as well as to
independent contractors and consultants who have agreed to perform services for
the Company.
The Plan authorizes the Company to grant either "incentive stock options"
to Employees only or "non-statutory stock options" to either Employees or
Consultants to purchase up to 1,000,000 Common Shares of the Company; and
1,000,000 Common Shares have been reserved for issuance upon the exercise of
such options. Shares subject to options will be available from the Company's
authorized and unissued Common Shares or from shares reacquired by the Company.
If any option expires or terminates without having been exercised in full, the
unpurchased shares subject thereto will be restored to the Plan.
The number of shares covered by the Plan and the number of shares
purchasable upon exercise of outstanding options are subject to equitable
adjustment in the event of a split-up, merger, consolidation, recapitalization,
reorganization, reclassification or capital adjustment, including a share
dividend. In such an event the exercise price of any outstanding option will
also be equitably adjusted.
Administration
The Plan is administered by a committee (the "Committee") consisting of not
less than two members of the Company's Board of Directors appointed from time to
time by the Board. Members serve at the pleasure of the Board and may be changed
at any time. The Committee determines the terms of each individual grant of
options, has authority to construe the Plan and has the power to prescribe,
amend and revoke rules and regulations for administration of the Plan. Only key
employees, including officers, of the Company are eligible to receive incentive
stock options under the Plan. Directors of the Company who are not also
employees are not eligible to receive incentive stock options. However,
directors, outside consultants and other independent contractors are eligible to
receive non-statutory options pursuant to the Plan.
2
<PAGE>
Price and Other Conditions
The exercise price for each incentive stock option granted under the Plan
must be not less than 100% of the fair market value of the Common Shares on the
date the option is granted, except in the case of an incentive stock option
granted to an employee who owns more than ten percent of the Common Shares, in
which case the exercise price shall be at least 110% of the fair market value of
the Common Shares on the date such option is granted. No incentive stock option
may be granted to an Employee if, as the result of such grant, the aggregate
fair market value (determined as of the time the incentive stock option is
granted) of the Common Shares for which such Employee has been granted incentive
stock options exercisable for the first time by such Employee during any
calendar year under all incentive stock option plans of the Company exceeds
$100,000. In the case of a non-statutory option, the exercise price for each
option granted under the Plan must be not less than 85% of the fair market value
of a Common Share on the date such non-statutory option is granted.
No option granted under the Plan shall be exercisable for more than ten
years after the date of grant, except that no incentive stock option granted to
an employee who owns more than ten percent of the total combined voting power of
all classes of capital shares of the Company shall be exercisable more than five
years after the date such incentive option is granted.
All options granted under the Plan also shall be subject to such other
conditions as are contained in the governing option agreement approved by the
Committee which evidences the grant of such option. In addition, the grant of an
option under the Plan shall not be deemed to limit or restrict the right of the
Company to terminate the employment of any optionee.
Manner of Exercise and Payment
Each incentive option granted under the Plan may be exercised only after
one year of continued employment with the Company immediately following the date
the option is granted. Non-statutory options may be exercised earlier at the
discretion of the Committee when fixing the terms of the particular
non-statutory option grant. Incentive options may be exercised by an optionee
only while he or she is an Employee of the Company or within three months
following termination of employment or within 12 months following termination
because of permanent disability, but in each such case only to the extent the
optionee had the right to exercise such option at the date of termination.
Non-statutory options may be exercised by an optionee only while he or she is an
Employee or Consultant or within 12 months following termination of the
employment or engagement because of permanent disability, but only to the extent
the optionee had the right to exercise such option at the date of termination.
In the event of death of an optionee while in the employ of the Company, or
while engaged as a Consultant, his or her option shall be exercisable by the
person or persons to whom such optionee's rights pass by will or by the laws of
descent and distribution at any time prior to the expiration of the option or
within one year of the date of death, whichever is earlier.
Payment for shares upon exercise of an option may consist of cash, check or
other Common Shares having a fair market value on the date of surrender equal to
the aggregate exercise price of the Common Shares to which the option is being
exercised, subject to the determination of the Committee. In the case of payment
for shares upon exercise of an option with other Common Shares, careful
consideration must be given by the optionee to the potential for liability, if
any, imposed by Section 16(b) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
3
<PAGE>
Rights of Optionees
An optionee shall have no right as a shareholder with respect to any shares
covered by an option until payment for such shares shall have been made in full
and until the issuance of a certificate or certificates representing the shares.
No shares shall be delivered pursuant to the exercise of an option until the
requirements of such laws and regulations as may be deemed by the Committee to
be applicable are satisfied.
Options are not transferable except by will or by the laws of descent and
distribution. During an optionee's lifetime, options granted to such optionee
may be exercised only by the optionee.
Expiration and Termination
The Plan will terminate on December 3, 2002. Thereafter, any unexercised
options then outstanding will remain in effect until they are exercised or
terminate or expire in accordance with their terms. The Plan may be abandoned,
suspended or terminated at any time by the Board of Directors of the Company
except with respect to any options previously granted and still outstanding
under the Plan.
Amendment of the Plan
The Plan may be amended from time to time by the Board of Directors of the
Company, except with respect to any options previously granted and still
outstanding under the Plan. Consent of the shareholders of the Company is
required for any amendment which would (a) increase the maximum number of shares
for which options may be granted under the Plan, or (b) change the class of
Employees or Consultants eligible to receive options under the Plan.
Resales of Common Shares
There are no registration or prospectus delivery requirements under the
Securities Act with respect to the resale of Common Shares acquired pursuant to
the Plan by persons who are not "affiliates" (as that term is defined under the
Securities Act) of the Company. However, this Prospectus may not be used in
connection with any resale of Common Shares acquired upon exercise of options by
affiliates of the Company.
Participants who are affiliates of the Company may not sell Common Shares
acquired by them under the Plan except pursuant to an effective registration
statement under the Securities Act (the Company having no obligation to file
such registration statement) or an exemption therefrom, such as provided by Rule
144 under the Securities Act. An employee who is not an executive officer,
director or ten percent or greater shareholder of the Company generally will not
be deemed to be an "affiliate" of the Company.
FEDERAL INCOME TAX CONSEQUENCES
The following discussion of federal income tax consequences of
participation in the Plan is only a summary, does not purport to be complete,
and does not cover, among other things, state and local tax consequences. In
addition, differences in participants' financial situations may cause federal,
state and local consequences of participation in the Plan to vary. Therefore,
each participant in the Plan is urged to consult his or her own accountant,
legal counsel or other financial advisor regarding the tax consequences of
4
<PAGE>
participation in the Plan. This discussion is based on the provisions of the
Code as in effect at the date of this Prospectus.
Incentive Stock Options
Under the Code, if Common Shares are issued to the original holder of an
incentive stock option granted and exercised in accordance with the Plan, then
(1) no income will be realized by such holder at the time of the grant of
the option or the transfer of such shares to such holder pursuant to the
exercise of such option;
(2) the excess of the fair market value of such shares at the time of
exercise over the option price will be treated as an "item of adjustment" to
such holder under the alternative minimum tax provisions of the Code, and
therefore will be subject to tax at the minimum tax rate under certain
conditions (provided the shares are immediately transferable and are not subject
to a substantial risk of forfeiture);
(3) no deduction will be allowable to the Company for federal income tax
purposes in connection with the grant or exercise of such option; and
(4) upon a sale or exchange of such shares after the later of (a) one year
from the date of transfer of shares to the original holder, and (b) two years
from the date of the grant of the option, any amount realized by such holder in
excess of the option price will be taxed to the holder as a long-term capital
gain. Currently, the Code limits the maximum rate for net capital gains to 28
percent.
If, before the holding period requirements in clause (4) above are
satisfied, the holder sells or otherwise disposes of the shares, a
"disqualifying disposition" generally occurs and the preferential tax treatment
for the option is lost; and, then (i) the income that a holder would have
recognized when the option was exercised, but for the special incentive stock
options rules, is recognized as compensation income in the taxable year of the
disqualifying disposition; (ii) capital gain income is also recognized if the
shares have appreciated since the exercise of the incentive stock option
(special rules apply to depreciated stock); and (iii) the Company may deduct the
amount of the holder's compensation income.
If an option is exercised by payment in Common Shares previously owned by
the optionee, such exercise generally will not be considered a taxable
disposition of the previously owned shares and, thus, no gain or loss will be
recognized with respect to such shares upon such exercise. However, if the
previously owned shares were acquired on the exercise of an incentive or other
tax-qualified stock option and the holding period requirement for those shares
was not satisfied at the time they were used to exercise the option, such use
would constitute a disqualifying disposition of such previously owned shares
resulting in the recognition of ordinary income (but, under proposed Treasury
Regulations, not any additional capital gain) in the amount described above.
If an incentive stock option is exercised more than three months after
employment has terminated (or more than one year after employment terminates
because of permanent disability), the preferential tax treatment accorded
incentive stock options will not be available.
5
<PAGE>
Non-Statutory Options
Under the Code, if Common Shares are issued to the original holder of a
non-statutory option granted and exercised in accordance with the Plan, then
(1) no income will be recognized by the holder at the time of the grant of
the option;
(2) unless the shares transferred to the holder upon exercise of the option
are subject to the restrictions described in clause (3) below, upon exercise of
the option the holder will realize ordinary income in the year the option is
exercised in an amount equal to the excess of the fair market value of the
shares acquired at the time of exercise over the option price;
(3) if upon exercise of the option, the holder is restricted from selling
the shares so acquired because the holder would be subject to liability under
Section 16(b) of the Exchange Act, then unless the holder elects at the time of
exercise pursuant to Section 83(b) of the Code to be taxed on the difference
between the option exercise price and the fair market value of the shares on the
date of exercise, (a) the holder will realize ordinary income at the time the
Section 16(b) restrictions lapse in an amount equal to the excess of the fair
market value at that time over the option price, (b) the holder's holding period
for the shares will begin at that time, and (c) dividends received by the holder
before that time will be taxable as ordinary compensation income;
(4) upon the sale of the shares acquired pursuant to the exercise of the
option, the holder will realize short-term or long-term capital gain or loss, as
the case may be, in an amount equal to the difference between the amount
realized on such sale and the holder's tax basis in the shares (determined as
described below); and
(5) the Company will be entitled to a deduction in an amount equal to the
ordinary income realized by the holder as set forth in clauses (2) and (3)
above, including a deduction for dividends paid to the holder where clause
(3)(c) applies.
If payment of the option price is made entirely in cash, the tax basis of
the shares will be equal to their fair market value on the date of exercise (or,
if applicable, the date on which the six-month Section 16(b) period terminates),
but not less than the option price, and their holding period will begin on the
day after the tax basis of the shares is so determined. If the optionee uses
previously owned shares to exercise an option in whole or in part, the
transaction will not be considered to be a taxable disposition of the previously
owned shares. The holder's tax basis and holding period of the previously owned
shares will be carried over to the equivalent number of shares received upon
exercise. The tax basis of the additional shares received upon exercise will be
the fair market value of the shares on the date of exercise (or, if applicable,
the date on which the six-month Section 16(b) period terminates), but not less
than the amount of cash used in payment, and the holding period for such
additional shares will begin on the day after the tax basis of the shares is so
determined.
* * * *
THE FOREGOING IS ONLY A BRIEF SUMMARY OF THE
FEDERAL INCOME TAX LAWS AND REGULATIONS AS CURRENTLY
IN EFFECT, AND SHOULD NOT BE RELIED ON AS BEING COMPLETE.
IN ADDITION, THE GRANT OR EXERCISE OF STOCK OPTIONS, AND
THE SALE OR OTHER DISPOSITION OF THE UNDERLYING SHARES,
MAY HAVE STATE AND LOCAL TAX CONSEQUENCES. EACH
6
<PAGE>
OPTIONEE SHOULD CONSULT HIS PERSONAL TAX ADVISOR
REGARDING FEDERAL, STATE AND LOCAL TAX CONSEQUENCES
OF PARTICIPATING IN THE PLAN.
* * * *
AVAILABLE INFORMATION
This Prospectus incorporates by reference the following documents filed by
the Company with the Securities and Exchange Commission (the "Commission") which
are not presented herein or delivered herewith:
(a) The Company's annual report on Form 10-K for the fiscal year ended
April 30, 1995; the Forms 10-Q for the fiscal quarters ended August 5, 1995 and
November 4, 1995;
(b) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since April 30, 1995;
(c) The Company's registration statement on Form 8-A, effective September
8, 1988, filed with the Commission pursuant to Section 12(g) of the Exchange
Act, containing a description of the Common Shares;
(d) All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the
date of this Prospectus and prior to the filing of a post-effective amendment to
the registration statement to which this Prospectus relates which indicates that
all securities offered by this Prospectus have been sold or which deregisters
all securities then remaining unsold, from the date of filing of such documents.
The Company will provide each participant with a copy of each document
required to be delivered pursuant to Rule 428(b) promulgated pursuant to the
Securities Act.
Copies of the foregoing documents, other than the exhibits thereto (unless
incorporated therein by reference), are available upon written or oral request,
and without charge, from FastComm Communications Corporation, 45472 Holiday
Drive, Sterling, Virginia 20166, (703) 318-7750.
Any statement contained in a document incorporated or deemed to be
incorporated herein by reference shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated herein by reference modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
7
<PAGE>
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed by FastComm Communications Corporation, a
Virginia (the "Company"), with the Securities and Exchange Commission (the
"Commission") are hereby incorporated by reference in this registration
statement and deemed to be a part hereof:
(a) The Company's annual report on Form 10-K for the fiscal year ended
April 30, 1995; the Forms 10Q for the fiscal quarters ended August 5, 1995 and
November 4, 1995;
(b) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since April 30, 1995; and
(c) The Company's registration statement on Form 8-A, effective September
8, 1988 filed with the Commission pursuant to Section 12(g) of the Exchange Act,
containing a description of the Common Shares, par value $.01 per share, of the
Company (the "Common Shares").
In addition, all documents subsequently filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment to this registration statement
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, are hereby deemed to be incorporated by
reference in this registration statement and to be a part hereof from the date
of filing of such documents.
Item 4. Description of Securities.
The Common Shares are registered under Section 12(g) of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Article Sixth of the By-Laws, as amended, of the Company empowers the
Company to indemnify current or former directors, officers, employees or agents
of the Company or persons serving by request of the Company in such capacities
in any other enterprise or persons who have served by the request of the Company
in such capacities in any other enterprise to the full extent permitted by the
laws of the Commonwealth of Virginia.
Article Tenth of the Virginia Stock Corporation Act contains provisions
authorizing indemnification by the Company of directors, officers, employees or
agents against certain liabilities and expenses which they may incur as
directors, officers, employees or agents of the Company or of certain other
entities. Section 13.1 - 699 also provides that such indemnification may include
payment by the Company of expenses incurred in defending a civil or criminal
action or proceeding in advance of the final disposition of such action or
proceeding upon receipt of an undertaking by the person indemnified to repay
such payment if he shall be ultimately found not to be entitled to
indemnification under the Section. Indemnification may be provided even though
the person to be indemnified is no longer a director, officer, employee or agent
of the Company or such other entities. Section 13.1 - 703 also contains
provisions authorizing the Company to obtain insurance on behalf of any such
director, officer employee or agent against liabilities, whether or not the
Company would have the power to indemnify such person against such liabilities
II-1
<PAGE>
under the provisions of the Section. The Company currently maintains a policy of
insurance under which the directors and officers of the Company are insured,
within the limits and subject to the exclusions and limitations of the policy,
against certain expenses in connection with the defense of actions, suits or
proceedings, and certain liabilities which might be imposed as a result of such
actions, suits or proceedings, to which they are parties by reason of being or
having been such directors or officers.
The indemnification and advancement of expenses provided pursuant to
Section 13.1 - 699 are not exclusive, and subject to certain conditions, the
Company may make other or further indemnification or advancement of expenses of
any of its directors, officers, employees or agents. Because the Articles of
Incorporation, as amended, of the Company do not otherwise provide,
notwithstanding the failure of the Company to provide indemnification and
despite a contrary determination by the Board of Directors or its shareholders
in a specific case, a director, officer, employee or agent of the Company who is
or was a party to a proceeding may apply to a court off competent jurisdiction
for indemnification or advancement of expenses or both, and the court may order
indemnification and advancement of expenses, including expenses incurred in
seeking court-ordered indemnification or advancement of expenses if it
determines that the petitioner is entitled to mandatory indemnification pursuant
to Section 13.1 - 698 because he has been successful on the merits, or because
the Company has the power to indemnify on a discretionary basis pursuant to
Section 13.1 - 699 or because the court determines that the petitioner is fairly
and reasonably entitled to indemnification or advancement of expenses or both in
view of all the relevant circumstances.
Section 13.1-692.1 of the Act provides that the damages assessed against
any officer or director arising out of a single transaction, occurrence or
course of conduct shall not exceed the lesser of (1) the monetary amount
specified in the articles of incorporation; or (2) the greater of (i) $100,000
or the amount of cash compensation received by the officer or director from the
corporation for the twelve (12) months immediately preceding the act or omission
for which liability was imposed. The liability of an officer or director shall
not be limited as provided above if the officer or director engaged in willful
misconduct or a knowing violation of criminal law or of any federal or state
securities law including without limit of any claim of unlawful insider trading
or manipulation of the market for any security.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following is a complete list of exhibits filed as a part of this
registration statement and which are incorporated herein:
Exhibit No.
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*4.1 Specimen certificate for the Common shares, par value $.01 per share, of
the Company. Incorporated by reference to Exhibit 4.1 filed by amendment
No. 2 to the Company's registration statement on Form S-18, SEC File No.
33-19785.
*4.2 FastComm Communications Corporation 1992 Stock Option Plan, as amended.
*4.3 Form of Incentive Stock Option Agreement used in connection with the
1992 Stock Option Plan.
*4.4 Form of Non-Statutory Stock Option Agreement used in connection with the
1992 Stock Option Plan.
**4.5 FastComm Communications Corporation 1994 Stock Option Amendment Program.
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**5.1 Opinion of Amon & Sabatini, counsel for the Company, regarding legality
of the securities covered by this registration statement.
**24.1 The consent of Amon & Sabatini, counsel for the Company, to the use of
their opinion with respect to the legality of the securities covered by
this registration statement is contained in such opinion filed as
Exhibit 5.1 to this registration statement.
**24.2 Consent of BDO Seidman, independent certified public accountants for the
Company.
- ----------
* Previously filed with Registration Statement No. 33-71028 filed with the
Commission on October 29, 1993.
** Filed herewith.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include
any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change
to such information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration buy means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act
off 1934) that is incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions described beneath Item 6 of this
registration statement, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-3
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Town of Sterling, Commonwealth of Virginia on January
17, 1996.
FASTCOMMM COMMUNICATIONS CORPORATION
By: /s/ PETER C. MADSEN
--------------------------
Peter C. Madsen, President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ PETER C. MADSEN President (Principal Executive Officer), January 17, 1996
- ----------------------- and Director
Peter C. Madsen
/s/ MARK H. RAFFERTY Chief Financial and Principal Accounting January 17, 1996
- ----------------------- Officer
Mark H. Rafferty
Director January 17, 1996
- -----------------------
Gary H. Davison
/s/ EDWARD R. OLSON Director January 17, 1996
- -----------------------
Edward R. Olson
/s/ THOMAS G. AMON Director January 17, 1996
- -----------------------
Thomas G. Amon
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
Sequentially
Exhibit Numbered
Number Description Page
- ------- ----------- ------------
*4.1 Specimen certificate for the Common Shares, par
value $.01 per share, of the Company. Incorporated
by reference to Exhibit 4.1 filed by Amendment No. 1
to the Company's registration statement on Form
S-18, SEC File No. 33-19785.
*4.2 FastComm Communications Corporation 1992 Stock
Option Plan.
*4.3 Form of Incentive Stock Option Agreement used in
connection with the FastComm Communications
Corporation 1992 Stock Option Plan.
*4.4 Form of Non-Statutory Stock Option Agreement used in
connection with the FastComm Communications
Corporation, Inc. 1992 Stock Option Plan.
**4.5 FastComm Communications Corporation 1994 Stock
Option Amendment Program
**5.1 Opinion of Amon & Sabatini, counsel for the Company,
regarding legality of the securities covered by this
registration statement.
**24.1 The consent of Amon & Sabatini counsel for the
Company, to the use of their opinion with respect to
the legality of the securities covered by this
registration statement is contained in such opinion
filed as Exhibit 5.1 to this registration statement.
**24.2 Consent of BDO Seidman, independent certified public
accountants for the Company.
- -------
* Previously filed with Registration Statement No. 33-71028 filed with the
Commission on October 29, 1993.
** Filed herewith.
EXHIBIT 4.5
FastComm Communications Corporation
1994 Stock Option Amendment Program
Instructions
This package contains the information and materials required (a) to understand
the 1994 Stock Option Amendment Program (the "Amendment Program"), (b) to
acknowledge to the Corporation that you understand that certain of your options
have been amended, and (c) to notify the Company if you wish to opt out of the
Amendment Program by exchanging any of your amended options for options having
the same terms as the original grant. Attached to this Instruction Sheet are:
(a) an Information Memorandum describing the Stock Option Amendment
Program and how it may affect you; and
(b) a form entitled "Acknowledgment of Amendment and Election to Exchange
Amended Stock Option" (the "Acknowledgment and Election Form") which
you must sign and return to the Stock Option Administration in
Sterling, VA no later than October 14, 1994, whether or not you wish
to exchange your amended options.
1. Read the accompanying Information Memorandum carefully. It will help you to
understand the Stock Option Amendment Program and the implications it has
for you.
2. After reading the Information Memorandum, read the Acknowledgment and
Election Form. The first paragraph contains a record of stock options
currently outstanding in your name which were, at the original date of the
grant, exercisable at prices greater than $4.375. If you do not think this
information is correct, please contact, Patrice Bartles immediately.
3. If the stock option information shown on the Acknowledgment and Election
Form is correct, and you wish to opt out of the Amendment Program with
respect to some or all of your amended options (i.e. thereby retaining the
original exercise price and date of grant):
* Indicate with an (X) in the `OPT OUT' box beside the of those options
with respect to which you wish to opt out of the Amendment Program;
However, if you do not wish to opt out of the Amendment Program with respect to
any of your amended options (i.e. thereby accepting the amended option price of
$4.375 and date of grant of September 9, 1994) do not check any of the boxes.
4. Sign the Acknowledgment and Election Form and return it to Patrice Bartles,
Stock Option administration in Sterling as soon as possible and certainly
no later than October 14, 1994, whether or not you are electing to opt out
of the Amendment Program. If the Acknowledgment and Election Form has not
been received by the Stock Option Administration by October 14, 1994, your
options will remain amended pursuant to the Amendment Program. This result
may be contrary to your wishes and not in your best interest.
1
<PAGE>
FastComm Communications Corporation
1994 Stock Option Amendment Program
Information Memorandum
Under the 1994 Stock Option Amendment Program stock options held by employees
and other eligible participants (other than directors and officers of the
Corporation) under the 1992 Stock Option Plan (the "Plan") to purchase common
shares of the Corporation at exercise prices greater then $4.375 have been
amended effective September 9, 1994 ("Amended Options") as follows:
(a) The exercise price has been reduced to $4.375 per share and
(b) the vesting period has been changed so that the Amended Options are
exercisable in three equal installments commencing on the first,
second and third anniversaries of the effective date of the amendment,
September 9, 1994 and will expire on the fifth anniversary of the date
of the amendment, September 9, 1999.
However, persons holding options subject to the Amendment Program may elect to
retain some or all of their stock options with the original terms (including
original exercise price and original vesting period) ("Original Options") by
opting out of the Amendment Program.
This memorandum describes the way in which the Amendment Program works, the
characteristics of the Amended Options and some considerations optionholders may
wish to take into account when considering whether to opt out of the Amendment
Program or not.
It is also important that every optionholder be aware that the decision whether
or not to opt out of the Amendment Program is entirely up to the individual, and
will depend upon many factors, including the individual's personal expectation
to: (i) the nature and timing of the Company's future performance and the manner
in which that performance will be reflected in the future market price of the
Company's Common Shares at such times as may be relevant to the exercise of the
individual's options; (ii) general economic and stock market conditions at
future times relevant to the exercise of the individual's options and the effect
of such conditions on the market price of the Company's Common Shares; and (iii)
the individual's personal financial and tax position at the future times
relevant to the exercise of the individual's options.
The Company does not make any representation or warranty as to its future
performance, the future market price or its Common Shares, or any other
factor which may be taken into account by individuals in determining
whether to exclude their option's under this program. Optionholders are
encouraged to make an individual decision based upon their own personal
circumstances and expectations.
The Company does not prefer, or recommend, any decision to any optionholder
with respect to any options. Optionholders are entirely free to make
whatever decision they think best in their particular case.
Some points to note concerning the 1994 Stock Option Amendment Program are:
(a) An optionholder may only opt out of the Amendment Program by delivering the
Acknowledgment of Amendment and Election to Exchange Stock Options (the
"Election Form") properly completed to the Company on or before the
prescribed deadline date, October 14, 1994.
2
<PAGE>
(b) Once an Election Form is filed it is irrevocable and the election therein
to opt out of the Amendment Program with respect to any of your options is
irreversible.
(c) Optionholders holding different options exercisable at different option
prices may elect to opt out of the Amendment Program with respect to some
options while electing not to opt out of the Amendment Program with respect
to others. However an optionholder may not opt out of the Amendment Program
with respect to fewer than all of the options which are exercisable at each
option price.
Characteristics of the Amended Options
Optionholders who deliver to the Company the Election Form by the prescribed
deadline acknowledging the effect of the Amendment Program and thereby
indicating a decision not to opt out of the Amendment Program for some or all of
their Amended Options will hold Amended Options having the following
characteristics:
(a) the number of shares which the optionholder may purchase under the Amended
Options will remain the same as under the currently outstanding options you
hold;
(b) the Amended Options will be exercisable at $4.375 per share;
(c) the Effective Date of Grant of the Amended Options will be September 9,
1994.
(d) the Amended Options will expire on the fifth anniversary of the Date of
Grant, September 9, 1999.
(e) the Amended Options will become exercisable according to the standard terms
and conditions of the Company's 1992 Stock Option Plan, namely:
(i) 1/3 of the number of shares subject to the option may be purchased at
any time on or after September 9, 1995 and prior to the expiration of
the option;
(ii) 2/3 or the number of shares subject to the option may be purchased at
any time on or after September 9, 1996 and prior to the expiration of
the option;
(iii)all of the number of shares subject to the option may be purchased at
any time on or after September 9, 1997 and prior to the expiration of
the option;
(f) the Amended Options will be issued pursuant to, and are subject to the
terms and conditions of the FastComm Communications Corporation 1992 Stock
Option Plan as amended from time to time.
Considerations
As mentioned above, many factors may influence an individual's decision whether
or not to opt out of the Amendment Program with respect to some or all of their
Amended Options. Three basic considerations are (i) the exercise price of the
options, (ii) the times at which options may be exercised, and (iii) the tax
treatment accorded different types of options.
(a) Exercise Price. The Amended Options are exercisable at $4.375. Only those
outstanding options which when granted were exercisable at prices greater
than $4.375 are subject to the Amendment Program. An obvious consideration
in deciding whether to opt out of the Amendment Program for your existing
options is the relative exercise prices involved. In general, all other
things being equal, it is more advantageous to have options with a lower
exercise price. However, optionholders considering opting out should
3
<PAGE>
consider not only the exercise price but such factors as the exercise
schedule of the Amended Options and tax treatment.
(b) Exercise Schedule. The Amended Options will be five year options which
become exercisable in installments of one-third each, on the first, second
and third anniversaries of the date of grant. A more precise formulation of
the schedule for exercising Amended Options is set out above under the
heading "Characteristics of Amended Options." This is the same schedule as
applies to all options issued under the Company's current 1992 Stock Option
Plan. Amended Options will be exercisable later than under the original
terms of those options. The earlier exercise dates available under options
unamended by the Amendment Program might allow an optionholder to realize a
benefit from stock options sooner. The Company is unable to predict future
changes in the market price of its shares, so optionholders must make a
personal decision as to whether or not they wish to opt out of the
Amendment Program with respect to their options.
(c) Tax Treatment and Other Information. The United States Federal Income Tax
Consequences of being granted and of exercising stock options under the
Company's plans, together with additional information about the plans, can
be found in the prospectus dated October 29, 1993, which is being provided
to you with this memorandum. All currently outstanding options, are and the
new options will be, Qualified or Non-Qualified Options as described in the
Prospectus. Since individuals all have different sets of circumstances
which affect their tax liability at any given time, there can be no
generally applicable formula for determining whether there is an advantage
for an individual to exchange any or all of their options. Employees are
encouraged to consult their own financial advisors for advice on how this
and other aspects of the Stock Option Amendment Program might affect their
personal financial positions.
4
<PAGE>
FASTCOMM COMMUNICATIONS CORPORATION
1994 STOCK OPTION AMENDMENT PROGRAM
ACKNOWLEDGMENT OF AMENDMENT
AND ELECTION TO EXCHANGE STOCK OPTIONS
[Name of Optionholder]
To: FastComm Communications Corporation (the "Corporation")
1. I acknowledge that the following is a complete and accurate record of all
stock options which, at their original date of grant, were exercisable at
prices greater than $4.375 granted in my name which are unexercised and
unexpired as at September 9, 1994 under the FastComm Communications
Corporation 1992 Stock Option Plan (the "Plan") and which have now been
amended as described below under the 1994 Stock Option Amendment Program
(the "Amendment Program"):
Original Original New New Opt Out of
No. of Shares Exercise Date of Exercise Date of Amendment
Subject to Option Price Grant Price Grant Program
- ----------------- ----- ----- ----- ----- -------
____ OPT OUT
____ OPT OUT
2. I understand that pursuant to the Amendment Program, the terms of the above
options have been amended, such that:
(a) each option now has an exercise price of $4.375 per Common Share, and
a grant date of September 9, 1994.
(b) each option is exercisable in three equal installments commencing on
the first, second and third anniversaries of the new date of grant
which is September 9, 1994 and
(c) the option will expire on September 9, 1999, the fifth anniversary of
the new date of grant.
(d) I have lost the opportunity to benefit from the original exercise
prices, exercise periods and expiry dates represented by the original
terms of my options.
3. If, beside the details of any or all of the amended options listed above, I
have checked the box marked "OPT OUT" under the heading "Opt Out of
Amendment Program" I confirm that I wish to retain options at the original
option exercise price and grant date as shown above.
4. I hereby acknowledge and agree that all of the above-listed options in my
name are now and shall continue to be subject to the terms and conditions
of the 1992 Stock Option Plan.
5. I understand that upon receipt by the Corporation of this election,
properly completed, those options, if any, with respect to which I have
opted out of the Amendment Program (having checked the box "OPT OUT") will
remain unamended in the records of the Corporation.
5
<PAGE>
6. I also understand that this election is irrevocable and that no other
election may be submitted.
Dated this ___________ day of ______________________________________, 1994.
---------------------------------------------
Signature of Optionholder
---------------------------------------------
Print Name
Please note: This completed election form must be returned to Patrice Bartles,
Stock Option Administration as soon as possible and certainly no later than
October 14, 1994, whether or not you are electing to opt out of the Amenment
Program with respect to any of your amended options. If this form of election
has not been received by FastComm Stock Option Administration in Sterling, VA.
by October 14, 1994, your options will remain amended pursuant to the Amendment
Program. You will not be provided with any further confirmation of the amendment
of any options.
6
EXHIBIT 5.1
January 17, 1996
FastComm Communications Corporation
45472 Holiday Drive
Sterling, Virginia 20166
Re: Registration Statement on Form S-8
----------------------------------
Dear Sirs:
We have acted as counsel to FastComm Communications Corporation, a Virginia
corporation (the "Company"), in connection with the preparation and filing with
the Securities an Exchange Commission under the Securities Act of 1933 of a
Registration Statement on Form S-8 (the "Registration Statement") relating to
the registration of 1,047,251 shares (the "Shares") of the Company's Common
Stock, par value $.01 per share.
In so acting, we have examined originals, or copies certified or otherwise
identified to our satisfaction, of such corporate records, documents,
certificates and other instruments as in our judgment are necessary or
appropriate to enable us to render the opinion expressed below.
We are of the following opinion:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the Commonwealth of Virginia.
2. The Shares have been duly authorized and validly issued, and are fully
paid and non-assesssable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and to the use of our name under the caption "Legal Matters" in the
Registration Statement. In giving this consent, we do not admit that we are
acting within the category of persons whose consent is required under Section 7
of the Securities Act of 1933.
Very truly yours,
/s/ AMON & SABATINI
Exhibit 24.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of FastComm Communications Corporation on Form S-8 relating to the 1992 Stock
Option Plan of our report dated July 28, 1995, appearing in the Annual Report on
Form 10-K of FastComm Communications Corporation.
BDO Seidman
Washington, D.C.
December 19, 1995
